CASE NO.: CR 84/2011

“Not Reportable”

IN THE HIGH COURT OF NAMIBIA

In the matter between:

THE STATE

vs

TURIPURA KUHANGA

(HIGH COURT REVIEW CASE NO.:
1648/2011)

CORAM: PARKER, J et,
NDAUENDAPO, J

Delivered on: 2011 September 22

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REVIEW
JUDGMENT

_________________________________________________________________

PARKER J [1] The accused
(accused 2 in the trial court) was charged before the Gobabis
Magistrate’s Court on two counts of theft of stock: count 1 –
four head of cattle (valued at N$12,000.00); count 2 – two
horses (valued at N$2,500.00). The theft of stock takes into account
the Stock Theft Act, 1990 (Act No. 12 of 1990), as amended (‘the
Act’). The accused pleaded not guilty; he was tried and
convicted. The evidence shows that the value of each cattle accepted
by the trial magistrate is N$3,000.00; and I have no good reason to
fault the learned magistrate’s factual finding.

[2] The trial court committed the
accused for sentencing by the Regional Court, Gobabis, in terms of s.
116 (1) of the Criminal Procedure Act, 1977 (Act No. 51 of 1977)
(CPA). The learned Regional Magistrate was of the opinion that the
proceedings in the trial court were not in accordance with justice.
He, therefore, declined to sentence the accused and lay the record of
the proceedings, together with the reasons for his opinion, before
this Court in terms of s. 116 (3) of the CPA for special review of
the proceedings. Since the learned magistrate of the trial court had
given reasons in his judgment for convicting, I did not see the need
to seek any more reasons from him.

[3] In considering the special review,
I have taken account of the record of proceedings in the trial court,
including the learned magistrate’s judgment and the reasons for
the Regional Magistrate’s opinion.

[4] The factual finding made by the
learned trial magistrate was that the accused was found in possession
of three head of cattle. From this fact, the learned trial
magistrate made the inference that the accused also stole the fourth
cattle and the two horses. I find that the inference drawn is not
consistent with the proved fact, that is to say, the inference drawn
by the learned trial magistrate cannot exclude every reasonable
inference. Thus, upon the authority of R v Blom 1929 AD 88, I
find that from this lone proved fact of the accused being found in
possession of three head of cattle, the inference dawn by the
learned trial magistrate cannot be said to be reasonable.

[5] Accordingly, I find that the
conviction of the accused on count 2 is unsafe and unsatisfactory and
so it cannot stand. But the conviction on count 1 cannot be faulted,
bar the number of stock involved in the crime. Since ‘cattle’
is a countable noun, I do not think it is wrong and unreasonable to
say that on the facts the accused could be found guilty of three,
instead of, four head of cattle as appears in the charge sheet. I am
aware that the charge sheet charges in count 1 the theft of four head
of cattle. In this regard, it has been said that substitution of one
offence for another would be permissible as an amendment, provided
that there was no possibility that the accused would be prejudiced
thereby (Du Toit, et al, Commentary of the Criminal
Procedure Act, 1977 (Act No. 51 of 1977: p. 14-23, and the cases
there cited). Thus, subject to the overriding qualification of
potential prejudice, a charge should preferably be endorsed rather
than be declared invalid. This avoids a new trial with its
accompanying waste of time and money without the accused being
prejudiced in any way (Du Toit et al, ibid, pp. 14-9, 14-21
and the cases there cited). Altering four head of cattle (count 1) to
three head of cattle (count 1) only is, on the authorities, a
permissible amendment because the latter charge (i.e. theft of three
head of cattle) would not prejudice the accused as the latter charge
is not more serious than the substituted ones (i.e. theft of four
head of cattle) (Du Toit, et al, ibid, p. 14-23, and
the cases there cited). Indeed, the latter (i.e. three head of cattle
(count 1)) favours the accused in every respect.

[6] For all the aforegoing, I do not
see any good reason why this Court, qua review court, is not
competent to amend the charge sheet and endorse the charge in count 1
to read theft of three head of cattle (Du Toit, et al, ibid,
p14-24, and the cases there cited). Accordingly, I make the following
order:

(1) The charge in count 1 is amended
to read:

‘theft of three head of cattle
(valued at N$9,000.00’.

(2) The conviction of the accused on
count 1, as amended, is confirmed.

3. 
   The conviction of the accused on
   count 2 is set aside.

   
   

3. 
   The record is sent back to the
   Regional Magistrate’s Court, Gobabis, to enable the learned
   Regional Court Magistrate to summon the accused and sentence him
   accordingly as respects count 1, as amended.

   
   

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PARKER, J

I agree.

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NDAUENDAPO, J